"Reasonable Search" or "Reasonable Expectation of Privacy:" A Brief Reply to Orin Kerr on the 2nd Circuit's Decision

Thursday's 2nd Circuit decision striking down 215 ends with a brief, and unresolved, rumination on the impact explicit congressional authorization might have on a 4th Amendment analysis---if and when such an analysis were actually to take place:

[W]hether Congress has considered and authorized a program such as this one is not irrelevant to its constitutionality. The endorsement of the Legislative Branch of government provides some degree of comfort in the face of concerns about the reasonableness of the government’s assertions of the necessity of the data collection.  …. [C]ongressional judgment as to what is “reasonable” under current circumstances would carry weight---at least with us, and, we assume, with the Supreme Court as well---in assessing whether the availability of information to telephone companies, banks, internet service providers, and the like, and the ability of the government to collect and process volumes of such data that would previously have overwhelmed its capacity to make use of the information, render obsolete the third‐party records doctrine or, conversely, reduce our expectations of privacy and make more intrusive techniques both expected and necessary to deal with new kinds of threats.

Within hours, Orin Kerr pointed out that this rumination was “a little odd.” After all, the “reasonableness” of searches under 215 has never been the main constitutional issue; the question is whether collecting data from a third party constitutes a search at all. Kerr writes,

The court’s rumination about the Fourth Amendment issue is a little odd because it’s about a constitutional question that isn’t the focus of the NSA challenges. The idea that Congress’s approval of a program is relevant to its constitutional reasonableness is an interesting concept. But the real Fourth Amendment debate over the program has been what is a Fourth Amendment search in the first place, not when searches are constitutionally reasonable. But it’s not clear that the Second Circuit’s rumination about Congressional approval has any relevance to what is a search. When conduct isn’t a search, Congress doesn’t have to “approve” it first: If Congress wants to allow it freely, it can do (and usually does) nothing. So the court’s idea seems mostly or entirely to be about reasonableness after a search has been identified, which was at issue in the Section 215 challenges but has not been the focus.

Kerr is seizing on the 2nd Circuit’s repeated use of the word “reasonable," and taking the Court to be addressing the “reasonableness” of the a search. I wonder, however, whether he is too quick in making this leap. It seems to me that the 2nd Circuit is making an entirely different point: that in navigating the Katz v. United States and Smith v. Maryland precedents to determine what constitutes a search, “reasonableness” (and therefore Congressional views of reasonableness) matters---because "reasonableness" also factors into the analysis of whether someone has a reasonable expectation of privacy in certain kinds of data. The 2nd Circuit frames the central 4th Amdendment question as whether appellants have “privacy rights in their records.” On the one hand, Katz seems to guarantee expansive rights in any areas where there is an “actual (subjective) expectation of privacy…that society is prepared to recognize as ‘reasonable’”---a standard that very well may apply to 215 data. But on the other hand, we have the standard emerging from Smith v Maryland, which declares any expectation of privacy in items disclosed to a third party to be “unreasonable” and “illegitimate.” In other words, the question of whether the collection of 215 data constitutes a search turns (at least partially) on whether a person’s expectation of privacy in that data is deemed to be reasonable. And on the 2nd Circuit’s account, Congress has a strong voice in that determination. On this reading (Kerr pointed out to me) the 2nd Circuit echoes Justice Alito’s concurrence in Riley v. California, where he wrote of cellphones:

[B]ecause of the role that these devices have come to play in contemporary life, searching their contents implicates very sensitive privacy interests that this Court is poorly positioned to understand and evaluate. Many forms of modern technology are making it easier and easier for both government and private entities to amass a wealth of information about the lives of ordinary Americans, and at the same time, many ordinary Americans are choosing to make public much information that was seldom revealed to outsiders just a few decades ago. In light of these developments, it would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment. Legislatures, elected by the people, are in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future.

Determinations of what constitutes a “reasonable expectation of privacy” (and thus what constitutes a “search”) are necessarily dependent on swiftly changing technology and social norms. According to Alito, Congress, not the courts, is best suited to keeping up with those changes, and its actions are probably be a better indicator of these norms than a judge's intuition. The 2nd Circuit’s constitutional ruminations follow a similar logic, and they are therefore precisely directed toward the central question of the NSA challenges. A constitutional inquiry about whether 215 collection represents a search would, under Katz and Smith, need to assess whether a person maintains a reasonable expectation of privacy in that data. And to determine that, we would need to assess how "the availability of information to telephone companies, banks, internet service providers, and the like, and the ability of the government to collect and process volumes of such data” affects society’s standard for a reasonable expectation of privacy. And according to the 2nd Circuit, what Congress thinks and does represents a useful data point in making this assessment. After all, explicit Congressional authorization of the 215 program both diminishes a person’s expectation of privacy and reflects a societal non-expectation of privacy in the first place. When understood like this, the 2nd Circuit’s constitutional ruminations aren’t so odd after all.